Supreme Court upholds jurisdiction of High Courts to pass orders exercising power vested under Article 226 of the Constitution

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Supreme Court has reiterated through this case that the jurisdiction of High Courts vested through Article 226 of the Constitution to pass orders and judgements interdicting legal fiction arising out of a state enactment.

Brief facts of the case

Both parties had contested election for the seat of Counsellor in Mumbai Municipal Corporation where the seat was reserved for backward class citizens. Respondent was declared elected. Section 5B of the Mumbai Municipal Corporation Act required submission of a caste validity certificate on the date of filing nomination. If not, an undertaking had to be submitted within twelve months of the election, failing which, results in disqualification from the post.

Scrutiny Committee rejected the application and refused to grant the certificate, which the respondent challenged. High Court quashed the order on the basis of finding out that the respondent is from the backward caste he claims to be from. Respondent was also entitled to continue in the seat since the effect of disqualification was postponed.

Arguments before the court

Appellant argued that requirement of submission of Caste Validity Certificate by Caste Scrutiny Committee within a period of one year from the date of the election is a mandatory requirement under the provisions of Section 5B of Mumbai Municipal Corporation Act.

The contesting Respondent having failed to submit the same within one year from 23.02.2017, their election as a counsellor, retrospectively, stands terminated and High Court exercising its jurisdiction under Article 226 of Constitution of India committed error by passing an interim order and allowing them to continue on their seat. Also, the court could not have extended the period beyond one year to produce the certificate.

Learned senior Counsel appearing for the Respondent contends that judicial remedy is a fundamental right and cannot be taken away by the statutory provisions. The High court passed an order within the time the same court in Writ Petition was considering a wrong order of the Scrutiny Committee, against which the interim order was rightly passed to protect the rights of the Respondent. This was so that in the event of a wrong order passed, it can be set aside without putting the Respondent into an irreparable loss.

Alternately, it is submitted that in pursuance of the remand order, the Caste Scrutiny Committee has verified the caste of the Respondent and the order shall relate back to the date when it was initially passed i.e. on 14.08.2017. The time taken in the adjudication before the courts ought not to be used against the Respondent. Also, it has been held that there is an inherent power of the High Court to pass interim orders even in Election matters.

Supreme Court’s View

“We opine that, the power of judicial review vested in the High Courts under Article 226 and this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is the basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary and its scope is very wide and can be used to remedy injustice wherever it is found and overrides any contrary provision in a Statute and the power of the High Court cannot be taken away or abridged by any contrary provision in a Statute. The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous.”

It is true that requirement of submission of Caste Validity Certificate within a period of one year under Section 5B of Mumbai Municipal Corporation Act is a mandatory requirement but in the facts of the case before us, before the expiry of the period of six months, the Caste Scrutiny Committee had illegally rejected the claim necessitating the filing of writ petition by aggrieved persons in which writ petition the interim relief was granted by the High Court. The power of the High Court to grant interim relief in any appropriate case cannot be held to be limited only for a period of one year, which was period envisaged in Section 5B for submission of the Caste Validity Certificate.

The court quoted Justice R.F. Nariman’s concurring judgement in Asian Resurfacing of Road Agency Private Limited and Anr. v. Central Bureau of Investigation wherein he said

“First and foremost, it must be appreciated that the High Courts are established by the Constitution and are courts of record which will have all powers of such courts, including the power to punish contempt of themselves. The High Court, being a superior court of record, is entitled to consider questions regarding its own jurisdiction when raised before it.”

Supreme Court, Jurisdiction of High CourtSupreme Court’s Decision

The court concluded that Section 5B of the Mumbai Municipal Corporation Act does not oust the jurisdiction of the High Court under Article 226 of the Constitution. The High Court in the exercise of jurisdiction Under Article 226 of the Constitution can pass an order interdicting the legal fiction as contemplated under the second proviso to Section 5B, provided the legal fiction had not come into operation.

The interim order dated 18.08.2017 in Writ Petition No. 2269 of 2017 as well as the impugned final judgment dated 02.04.2019 were not beyond the jurisdiction of High Court under Article 226 of the Constitution. The interim order dated 22.08.2017 and final judgment dated 02.04.2019 in Writ Petition No. 145 of 2018 were not the orders beyond the jurisdiction of High Court under Article 226 of the Constitution.

We do not find any error in the impugned judgment of the High Court insofar as it continues the Respondent in Civil Appeal Nos. 1429-1430 of 2020 till the decision of Scrutiny Committee is taken consequent to the setting aside of the report of the Scrutiny Committee by the impugned judgment. Insofar as the case of the Respondent in Civil Appeal No. 1431 of 2020 is concerned, the High Court by the impugned judgment has not only set aside the order of the Scrutiny Committee but declared the Respondent to be belonging to the backward class, i.e., Koyari. In the counter affidavit filed by the Respondent in Civil Appeal Nos. 1429-1430 of 2020, the Respondent has brought on record the order dated 30.09.2019 of the Caste Scrutiny Committee by which the Caste Scrutiny Committee has upheld the claim of Respondent to belong to backward class. The court did not find any error in the impugned judgment of the High Court dated 02.04.2019 and dismissed the appeals


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